EXHIBIT 10.43
AMENDMENT NO. 3 TO
STOCKHOLDERS AGREEMENT
This Amendment No. 3 to Stockholders Agreement (this "Amendment") is
made and entered into as of December 4, 1996 by and between Aftermarket
Technology Holdings Corp., a Delaware corporation (the "Company"), Aurora
Equity Partners L.P., a Delaware limited partnership ("AEP"), Aurora Overseas
Equity Partners I, L.P., a Cayman Islands exempted limited partnership
("AOEP"), and each of the stockholders of the Company who are signatories
hereto (the "Stockholders").
WHEREAS, Section 10.2 of that certain Stockholders Agreement dated
as of August 2, 1994 among the Company and certain of its stockholders,
optionholders and warrantholders, as amended (the "Stockholders Agreement"),
permits the amendment thereof by a written agreement signed by (a) the
Company, (b) AEP and AOEP and (c) the holders of a majority in voting
interest of the outstanding shares of Common Stock and Preferred Stock of the
Company;
WHEREAS, the Stockholders hold a majority in voting interest of the
outstanding shares of Common Stock and Preferred Stock of the Company; and
WHEREAS, the parties hereto desire to amend the Stockholders
Agreement as follows: (i) to clarify that from and after the effective date
of the merger (the "Merger") of the Company into Aftermarket Technology
Corp., the Company's wholly-owned subsidiary ("ATC"), any reference to the
"Company" shall be deemed to be a reference to ATC; (ii) to add demand
registration rights for the benefit of any stockholder who is a party to the
Stockholders Agreement and who, after a distribution of shares by AEP or AOEP
to their limited partners, owns at least 10% of the outstanding common stock
and is therefore unable to resell his shares without registration because his
stock ownership causes him to be an affiliate of ATC (and therefore subject
to certain statutory resale restrictions); (iii) to clarify that the Company
will pay all expenses relating to the registration of securities resulting
from an exercise of the "piggyback" or demand registration rights granted
therein; and (iv) to clarify that the holdback agreement provision applicable
to underwritten offerings applies to a
Qualified IPO (as defined in the Stockholders Agreement) that is consummated
on or before March 31, 1997.
NOW, THEREFORE, in consideration of the foregoing recitals and the
covenants set forth herein, the parties hereto hereby agree as follows:
1. AMENDMENT.
(a) Section 10.6 of the Stockholders Agreement is hereby
deleted in its entirety and the following is hereby substituted in its
place:
"10.6 SUCCESSORS AND ASSIGNS. Except as otherwise
expressly provided herein, this Agreement shall be binding upon and
inure to the benefit of the Company, its successors and assigns, and the
Stockholders and their respective heirs, personal representatives,
successors and permitted assigns. In the event that the Company is
merged into Aftermarket Technology Corp., a Delaware corporation and the
Company's wholly-owned subsidiary ("ATC"), upon the effectiveness of
such merger, any reference in this Agreement to the "Company" shall be
deemed to be a reference to ATC."
(b) Exhibit D to the Stockholders Agreement is hereby deleted
in its entirety and the attached Annex A is hereby substituted in its
place.
2. GOVERNING LAW. This Amendment shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware
without reference to choice or conflicts of law principles thereof.
3. EFFECT OF AMENDMENT. Except as amended by this Amendment, the
Stockholders Agreement shall remain unchanged and shall remain in full force
and effect.
2
IN WITNESS WHEREOF, the Company, AEP, AOEP and each of the Stockholders
have duly executed this Amendment as of the date first above written.
AFTERMARKET TECHNOLOGY
HOLDINGS CORP.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
THE CLASS A STOCKHOLDERS:
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇ REVOCABLE TRUST
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇, Grantor/Trustee
-------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
3
THE CLASS B STOCKHOLDERS:
ALLENWOOD VENTURES, INC.
By:
---------------------------------
Name:
------------------------------
Title:
-----------------------------
-----------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ VARIABLE TRUST
By:
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Trustee
THE ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ FOUNDATION
By:
---------------------------------
Name:
------------------------------
Title:
-----------------------------
AURORA CAPITAL PARTNERS L.P.
By: Aurora Advisors, Inc.,
its general partner
By:
---------------------------------
Name:
------------------------------
Title:
-----------------------------
4
AURORA OVERSEAS CAPITAL
PARTNERS, L.P.
By: Aurora Overseas Advisors Ltd.,
its general partner
By:
---------------------------------
Name:
------------------------------
Title:
-----------------------------
BANCBOSTON INVESTMENTS, INC.
By:
---------------------------------
Name:
------------------------------
Title:
-----------------------------
BANKAMERICA CAPITAL CORPORATION
By:
---------------------------------
Name:
------------------------------
Title:
-----------------------------
CALIFORNIA PUBLIC EMPLOYEES'
RETIREMENT SYSTEM
By:
---------------------------------
Name:
------------------------------
Title:
-----------------------------
5
CASTLEROCK INVESTMENTS LTD.
By:
---------------------------------
Name:
------------------------------
Title:
-----------------------------
CHEMICAL EQUITY ASSOCIATES
By:
---------------------------------
Name:
------------------------------
Title:
-----------------------------
CHEMICAL INVESTMENTS, INC.
By:
---------------------------------
Name:
-----------------------------
Title:
----------------------------
----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
THE TRUSTEES OF DARTMOUTH COLLEGE
By:
-------------------------------
Name:
----------------------------
Title:
---------------------------
6
▇▇▇▇ ▇▇▇▇▇▇ AS CUSTODIAN FOR AURORA
CAPITAL PARTNERS VIP PLUS 401(K) PLAN
FBO ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By:
---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee
By:
---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
▇▇▇▇ ▇▇▇▇▇▇ AS CUSTODIAN FOR AURORA
CAPITAL PARTNERS VIP PLUS 401(K) PLAN
FBO ▇▇▇▇ ▇. ▇▇▇▇▇
By:
---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
▇▇▇▇ ▇▇▇▇▇▇ AS CUSTODIAN FOR AURORA
CAPITAL PARTNERS VIP PLUS 401(K) PLAN
FBO ▇▇▇▇ ▇. ▇▇▇▇▇▇
By:
---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee
By:
---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
7
▇▇▇▇ ▇▇▇▇▇▇ AS CUSTODIAN FOR AURORA
CAPITAL PARTNERS VIP PLUS 401(K) PLAN
FBO ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:
---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee
By:
---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
▇▇▇▇ ▇▇▇▇▇▇ AS CUSTODIAN FOR AURORA
CAPITAL PARTNERS VIP PLUS 401(K) PLAN
FBO ▇. ▇▇▇▇▇▇▇▇ YORT
By:
---------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee
By:
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
DELTA MASTER TRUST
By:
--------------------------
Trustee
------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, III
8
GENERAL ELECTRIC PENSION TRUST
By:
-----------------------------
Name:
---------------------------
Title: Trustee
HARBOURTON REASSURANCE, INC.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇ FINANCIAL, INC.
By:
-----------------------------
Name:
--------------------------
Title:
-------------------------
--------------------------------
AMBASSADOR ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
9
L-A&A GIFT TRUST FBO
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By:
-----------------------------
Name:
--------------------------
Title:
-------------------------
L-A&A GIFT TRUST FBO
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By:
-----------------------------
Name:
--------------------------
Title:
-------------------------
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
LODWRICK AND ▇▇▇▇▇▇ ▇▇▇▇ AS
TRUSTEES OF THE ▇▇▇▇ FAMILY
TRUST DATED SEPTEMBER 16, 1991
By:
-----------------------------
Trustee
--------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
10
NHL HOLDINGS LTD.
By:
-----------------------------
Name:
--------------------------
Title:
-------------------------
OGAC LIMITED
By:
-----------------------------
Name:
--------------------------
Title:
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ORYX EQUITY PARTNERS FUND I LTD.
By:
-----------------------------
Name:
--------------------------
Title:
-------------------------
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ AND ▇.▇. ▇▇▇▇▇▇, JTWROS
By:
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
By:
-----------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇ TRUST
By:
-----------------------------
Name:
--------------------------
Title:
-------------------------
SPRINGBROOK, G.P.
By:
-----------------------------
Name:
--------------------------
Title:
-------------------------
--------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SUMITOMO BANK OF CA TTEE FOR ▇▇▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇▇▇ RETIREMENT PLAN FBO
H. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
By:
-----------------------------
Name:
--------------------------
Title:
-------------------------
SUMITOMO BANK OF CA TTEE FOR
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ RETIREMENT
PLAN FBO ▇▇▇▇▇ ▇. ▇▇▇▇▇
By:
-----------------------------
Name:
--------------------------
Title:
-------------------------
▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
By:
-----------------------------
Name:
--------------------------
Title:
-------------------------
W. S. INVESTMENTS L.P.
By:
-----------------------------
Name:
--------------------------
General Partner
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
▇. ▇▇▇▇▇▇▇▇ YORT
13
THE CLASS C STOCKHOLDERS:
AURORA EQUITY PARTNERS L.P.
By: Aurora Capital Partners L.P.,
its general partner
By: Aurora Advisors, Inc.,
its general partner
By:
-----------------------------
Name:
--------------------------
Title:
-------------------------
AURORA OVERSEAS EQUITY
PARTNERS I, L.P.
By: Aurora Overseas Capital Partners,
L.P., its general partner
By: Aurora Overseas Advisors Ltd.,
its general partner
By:
-----------------------------
Name:
--------------------------
Title:
-------------------------
14
ANNEX A
EXHIBIT D
REGISTRATION RIGHTS
1. "PIGGY-BACK" REGISTRATION.
(a) RIGHT TO INCLUDE REGISTRABLE SECURITIES. Except in the case of a
Qualified IPO that is consummated on or before March 31, 1997, if the
Company at any time proposes to effect a Qualified IPO or, following a
Qualified IPO, proposes to register any of its equity securities under
the Act (other than by a registration on Form S-4 or S-8 or any successor
or similar forms), whether or not for sale for its own account, in a manner
which would permit registration of Registrable Securities for sale to the
public under the Act, then the Company will each such time give prompt
written notice (which shall be at least 30 days prior to filing) to all
Eligible Holders of Registrable Securities of its intention to do so and
of such Eligible Holders' rights under this Paragraph 1. Upon the written
request of any such Eligible Holder made within 20 days after the receipt
of any such notice (which request shall specify the Registrable Securities
intended to be disposed of by such Eligible Holder and the intended method
of disposition thereof), the Company will use its best efforts to effect
the registration under the Act of all Registrable Securities which the
Company has been so requested to register by the holders thereof, to the
extent requisite to permit the disposition (in accordance with the intended
methods thereof as aforesaid) of the Registrable Securities so to be
registered, by inclusion of such Registrable Securities in the registration
statement which covers the securities which the Company proposes to register
or in a separate registration statement concurrently filed and on terms
substantially the same as those being offered to the Company; PROVIDED that
if, at any time after giving written notice of its intention to register any
securities and prior to the effective date of the registration statement
filed in connection with such registration, the Company shall determine for
any reason not to register or to delay registration of such securities, the
Company may, at its election, give written notice of such determination to
each Eligible Holder of Registrable Securities and, thereupon:
(i) in the case of a determination not to register, shall be
relieved of its obligation to register any Registrable Securities in
connection with such registration (but not from its obligation to pay
the Registration Expenses in connection therewith), and
(ii) in the case of a delay in registering, shall be permitted
to delay registering any Registrable Securities for the same period
as the delay in registering such other securities.
(b) PRIORITY IN "PIGGY-BACK" REGISTRATIONS. If a registration
pursuant to this Paragraph 1 involves an underwritten offering and the
managing underwriter advises the Company in writing that, in its opinion,
the number of securities requested to be included in such registration
exceeds the number which can be sold
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-1
in such offering without adversely affecting the offering, the Company will
include in such registration to the extent of the number which the Company
is so advised can be sold in such offering without adversely affecting the
offering, securities determined as follows:
(i) first, the securities proposed by the Company to be sold
for its own account,
(ii) second, any Registrable Securities requested to be included
in such registration PRO RATA among the holders thereof requesting such
registration on the basis of the number of shares of such securities
requested to be included by such holders, and
(iii) third, any other securities of the Company proposed to be
included in such registration statement in accordance with the
priorities, if any, then existing among the holders of such securities.
2. DEMAND REGISTRATION RIGHT OF CERTAIN ELIGIBLE HOLDERS.
(a) RIGHT TO REQUIRE REGISTRATION. Subject to the provisions of this
Paragraph 2, if, at any time after the first anniversary of the consummation
of a Qualified IPO, any Eligible Holder (other than the Aurora Entities) is
the record owner of 10% or more of the outstanding Common Stock immediately
after a distribution of shares by either or both of the Aurora Entities to
their limited partners (such Eligible Holder being a "Demand Holder"), such
Demand Holder shall have the right to require the Company to file a
registration statement under the Securities Act for a public offering of all
or any portion of the Registrable Securities held by such Holder when such
right is exercised (the Registrable Securities to be subject to such
registration being the "Demand Registration Securities"), PROVIDED that any
demand for registration under this Paragraph 2 (a "Registration Demand")
shall not be otherwise deemed to be effective unless such Registration
Demand is with respect to Registrable Securities constituting at least five
percent of the outstanding shares of the class of Registrable Securities.
The demand registration rights granted to the Demand Holders in this
Paragraph 2 are subject to the following limitations:
(i) each Demand Holder may make a Registration Demand under
this Paragraph 2 only one time, PROVIDED, HOWEVER, that if, after
completion of the resulting registered offering, such Demand Holder
continues to hold 10% or more of the outstanding Common Stock or holds
10% or more of the outstanding Common Stock as the result of a
subsequent distribution of shares by either or both of the Aurora
Entities to their limited partners, such Demand Holder shall have the
right to make one additional Registration Demand;
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-2
(ii) the Company shall not be obligated to cause any
registration statement filed under this Paragraph 2 to be declared
effective less than six months after the effective date of the most
recent registration statement filed by the Company on its own behalf;
(iii) the managing underwriter of any such offering shall be a
nationally recognized investment banking firm selected by the Company
and approved by the Demand Holder making the Registration Demand (which
approval shall not be unreasonably withheld);
(iv) notwithstanding the giving of a Registration Demand by a
Demand Holder, the Company may elect to convert the required
registration into a registration of shares for sale by the Company
pursuant to Paragraph 1 hereof by providing notice to the Eligible
Holders in accordance with Paragraph 1, and in such event the
provisions of Paragraph 1 shall apply to such registration rather than
the provisions of this Paragraph 2 and such registration shall not
count as the exercise of such Demand Holder's registration right under
this Paragraph 2;
(v) during any two-year period, the Company may make a
one-time election to postpone the filing or the effectiveness of a
registration statement in response to a Registration Demand for up to
six months if the Board determines, in its good faith judgment, that
(x) such registration would reasonably be expected to have an adverse
effect on, interfere with or delay any proposal or plan by the Company
or any of its subsidiaries to engage in any acquisition of assets
(other than in the ordinary course of business) or any merger,
consolidation, tender offer or similar transaction, (y) the filing of
a registration statement or a sale of Registrable Securities pursuant
thereto would require disclosure of material information that the
Company has a bona fide business purpose for preserving as
confidential, or (z) the Company is unable to comply with the
registration requirements of the Commission; PROVIDED, that, in such
event, the Demand Holder making the Registration Demand will be
entitled to withdraw such demand and, if such demand is withdrawn,
such demand will not count as a Registration Demand hereunder
and the Company will pay all Registration Expenses in connection with
such withdrawn demand; and
(vi) any Registration Demand under this Paragraph 2 shall be
for a firm commitment underwritten offering, with respect to which the
Company shall be required to maintain an effective registration
statement for a maximum of 30 days.
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-3
(b) NOTICE OF REGISTRATION DEMAND; PARTICIPATION RIGHTS. Any Demand
Holder desiring to make a Registration Demand shall do so by providing
written notice to the Company (which notice shall state the number of shares
of Registrable Securities the Demand Holder desires the Company to
register), and the Company promptly shall provide written notice of such
Registration Demand to all of the other Eligible Holders and all of the
Eligible Holders then will have the opportunity to include in the offering
shares of Registrable Securities then owned by such Eligible Holders, but
in each case only to the extent permitted by subdivision (c) of this
Paragraph 2. In addition, subject to subdivision (c) of this Paragraph 2,
the Company may elect to include in any registration statement and offering
pursuant to this Paragraph 2 newly issued shares of Registrable Securities.
Solely for purposes of Paragraphs 3 through 9 below, any securities
registered pursuant to this Paragraph 2 shall be deemed to be Registrable
Securities.
(c) PRIORITY. Notwithstanding the foregoing, if the managing
underwriter of a registered offering being made in response to a
Registration Demand advises the Company in writing that the number of shares
of Registrable Securities desired to be offered by the Company or Eligible
Holders other than the Demand Holder who made the Registration Demand,
together with the Demand Registration Securities of such Demand Holder,
exceeds the maximum number of such shares which the managing underwriter
considers, in good faith, to be appropriate based on market conditions and
other relevant factors (including, without limitation, pricing) (the
"Maximum Number"), then the securities proposed to be included by Eligible
Holders other than such Demand Holder (the "Other Sellers") shall be
excluded from such registration before any such securities of such Demand
Holder or the Company shall be excluded. If, and to the extent that, after
the exclusion of the securities proposed to be included by the Other
Sellers, the number of securities proposed to be included by such Demand
Holder and the Company exceeds the Maximum Number, such securities to be
included on behalf of the Company shall be excluded to the extent necessary
to avoid exceeding the Maximum Number. Each of the Demand Holder, the Other
Sellers and the Company (in the event that any securities are to be offered
by the Company) may withdraw from any demand registration pursuant to this
Paragraph 2 by giving written notice to the Company prior to the filing date
of such registration statement and, in the event of a withdrawal by the
Demand Holder whose Registration Demand gave rise to the registration, such
withdrawn Registration Demand shall not be deemed to be a Registration
Demand counting against the permissible number of Registration Demands
set forth in Paragraph 2(a)(i) if the Demand Holder pays or promptly
reimburses the Company for all Registration Expenses incurred by the
Company in connection with such withdrawn Registration Demand.
3. REGISTRATION PROCEDURES. If and whenever the Company is required to
use its best efforts to effect the registration of any Registrable Securities
under the Act as provided in Paragraph 1 or 2, the Company will as
expeditiously as possible (and, in any event, within 90 days), subject to the
terms and conditions of Paragraph 1 or 2:
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-4
(a) prepare and file with the Commission the requisite registration
statement to effect such registration and use its best efforts to cause such
registration statement to become effective; PROVIDED, HOWEVER, that the
Company may discontinue any registration of its securities which are not
Registrable Securities at any time prior to the effective date of the
registration statement relating thereto;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective and to comply with the provisions of the Act with respect to the
disposition of all securities covered by such registration statement until
the earlier of such time as all of such securities have been disposed of in
accordance with the intended methods of disposition by the seller or sellers
thereof set forth in such registration statement or the expiration of 90
days after such registration statement becomes effective; PROVIDED that if
less than all the Registrable Securities are withdrawn from registration
after the expiration of such period, the shares so withdrawn shall be
allocated PRO RATA among the holders thereof on the basis of the respective
numbers of Registrable Securities held by them included in such
registration;
(c) furnish to each seller of Registrable Securities covered by such
registration statement such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus contained
in such registration statement (including each preliminary prospectus and
any summary prospectus) and any other prospectus filed under Rule 424 under
the Act, in conformity with the requirements of the Act, and such other
documents, as such seller may reasonably request;
(d) use its best efforts to register or qualify all Registrable
Securities and other securities covered by such registration statement under
such securities or blue sky laws of such jurisdictions as each seller
thereof shall reasonably request, to keep such registration or qualification
in effect for so long as such registration statement remains in effect, and
take any other action which may be reasonably necessary or advisable to
enable such seller to consummate the disposition in such jurisdictions of
the securities owned by such seller, except that the Company shall not for
any such purpose be required to:
(i) qualify generally to do business as a foreign corporation
in any jurisdiction wherein it would not but for the requirements of
this subdivision (d) be obligated to be so qualified,
(ii) subject itself to taxation in any such jurisdiction, or
(iii) consent to general service of process in any such
jurisdiction;
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-5
(e) use its best efforts to cause all Registrable Securities covered
by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable
the seller or sellers thereof to consummate the disposition of such
Registrable Securities;
(f) furnish to each seller of Registrable Securities a signed
counterpart, addressed to such seller (and the underwriters, if any), of:
(i) an opinion of counsel for the Company, dated the effective
date of such registration statement (or, if such registration includes
an underwritten public offering, an opinion of counsel for the Company
dated the date of the closing under the underwriting agreement),
reasonably satisfactory in form and substance to such seller, and
(ii) a "comfort" letter, dated the effective date of such
registration statement (and, if such registration includes an
underwritten public offering, a "comfort" letter dated the date of the
closing under the underwriting agreement), signed by the independent
public accountants who have certified the Company's financial
statements included in such registration statement,
covering substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of the
accountants' letter, with respect to events subsequent to the date of such
financial statements, as are customarily covered in opinions of issuer's
counsel and in accountants' letters delivered to the underwriters in
underwritten public offerings of securities and, in the case of the
accountants' letter, such other financial matters as such seller or such
holder (or the underwriters, if any) may reasonably request;
(g) immediately notify each holder of Registrable Securities covered
by such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Act, of the happening of any
event or the existence of any condition as a result of which the prospectus
included in such registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading in the light of the circumstances under which they were made,
or if in the opinion of counsel for the Company it is necessary to
supplement or amend such prospectus to comply with law and, at the request
of any such holder promptly prepare and furnish to such holder a reasonable
number of copies of a supplement to or an amendment of such prospectus as
may be necessary so that, as thereafter delivered to the purchasers of such
securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in light
of the circumstances under which they were made or such prospectus, as
supplemented or amended, shall comply with law;
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-6
(h) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering
the period of at least twelve months, but not more than eighteen months,
beginning with the first full calendar month after the effective date of
such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Act and the rules and regulations of
the Commission thereunder, and not file any amendment or supplement to such
registration statement or prospectus to which any such seller of Registrable
Securities covered by such registration statement shall have reasonably
objected on the grounds that such amendment or supplement does not comply
in all material respects with the requirements of the Act or of the rules or
regulations thereunder, having been furnished with a copy thereof at least
five business days prior to the filing thereof;
(i) provide a transfer agent and registrar for all Registrable
Securities covered by such registration statement not later than the
effective date of such registration statement;
(j) use its best efforts to list all Registrable Securities covered by
such registration statement on any securities exchange on which any of the
Registrable Securities are then listed; and
(k) pay all Registration Expenses relating to any such registration.
The Company may require each seller of Registrable Securities as to which
any registration is being effected to furnish the Company with such
information and undertakings as it may reasonably request regarding such
seller and the distribution of such securities as the Company may from time
to time reasonably request in writing.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities as follows:
(A) that upon receipt of any notice from the Company of the
happening of any event of the kind described in subdivision (g) of
this Paragraph 3, such holder will forthwith discontinue such
holder's disposition of Registrable Securities pursuant to the
registration statement relating to such Registrable Securities
until such holder's receipt of the copies of the supplemented or
amended prospectus contemplated by subdivision (g) of this
Paragraph 3 and, if so directed by the Company, will deliver to
the Company (at the Company's expense) all copies, other than
permanent file copies, then in such holder's possession of the
prospectus relating to such Registrable Securities current at the
time of receipt of such notice, and
EXHIBIT D TO STOCKHOLDERS AGREEMENT
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(B) that it will immediately notify the Company, at any time when
a prospectus relating to the registration of such Registrable
Securities is required to be delivered under the Act, of the
happening of any event as a result of which information previously
furnished by such holder to the Company in writing for inclusion
in such prospectus contains an untrue statement of a material fact
or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading in the
light of the circumstances under which they were made.
In the event the Company or any such holder shall give any such notice,
the period referred to in subdivision (b) of this Paragraph 3 shall be
extended by a number of days equal to the number of days during the period
from and including the giving of notice pursuant to subdivision (g) of this
Paragraph 3 to and including the date when each seller of any Registrable
Securities covered by such registration statement shall have received the
copies of the supplemented or amended prospectus contemplated by subdivision
(g) of this Paragraph 3.
4. UNDERWRITTEN OFFERINGS.
(a) UNDERWRITING AGREEMENT. If the Company at any time proposes to
register any of its securities under the Act as contemplated by Paragraph 1
and such securities are to be distributed by or through one or more
underwriters or if the Company at any time is required to register any of
its securities under the Act as contemplated by Paragraph 2, the Company
will, subject to the provisions of subdivision (b) of Paragraph 1 or
subdivision (c) of Paragraph 2, use its best efforts to arrange for such
underwriters to include the Registrable Securities to be offered and sold
by each holder among the securities to be distributed by such underwriters,
and each holder of Registrable Securities agrees, by acquisition of such
Registrable Securities, that all Registrable Securities of such holder to
be included in such registration shall be distributed and sold through such
underwriters. The holders of Registrable Securities to be distributed by
such underwriters shall be parties to the underwriting agreement between
the Company and such underwriters and may, at their option, require that any
or all of the representations and warranties by, and the other agreements on
the part of, the Company to and for the benefit of such underwriters shall
also be made to and for the benefit of such holders of Registrable
Securities and that any or all of the conditions precedent to the
obligations of such underwriters shall also be made to and for the benefit
of such holders of Registrable Securities. No holder of Registrable
Securities shall be required to make any representations or warranties to or
agreements with the Company or the underwriters other than representations,
warranties or agreements regarding such holder and such holder's intended
method of distribution and any other representation required by law.
(b) SELECTION OF UNDERWRITERS. The selection of the underwriter or
underwriters for the public offering to be made pursuant to a registration
statement
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-8
filed under Paragraph 1 shall be made by the Company, in its sole
discretion, from amongst underwriting firms of national reputation.
Notwithstanding anything else in this Exhibit D to the contrary, if General
Electric Pension Trust ("GEPT") is eligible to participate in an
underwriting pursuant to the terms hereof and the General Electric Company
is directly or indirectly the beneficial owner of five percent (5%) or more
of the outstanding equity interests of an underwriter or underwriters acting
in such underwriting, GEPT shall have the absolute right to disapprove such
underwriter or underwriters so owned by General Electric Company.
(c) HOLDBACK AGREEMENTS.
(i) Each holder of Registrable Securities agrees by acquisition
of such Registrable Securities, if so required by the managing
underwriter, not to effect any public sale or distribution of such
securities or sales of such securities pursuant to Rule 144 under the
Act or otherwise, during the seven days prior to and the 90 days after
any firm commitment underwritten registration pursuant to Paragraph 1
or 2 or any Qualified IPO that is consummated on or before March 31,
1997 has become effective or, if the managing underwriter advises the
Company in writing that, in its opinion, no such public sale or
distribution should be effected for a specific period longer than 90
days after such underwritten registration in order to complete the sale
and distribution of securities included in such registration and the
Company gives notice to such holder of Registrable Securities of such
advice, during a reasonable longer period of up to 270 days after such
underwritten registration, except as part of such underwritten
registration, whether or not such holder participates in such
registration.
(ii) The Company agrees:
(A) not to effect any public sale or distribution of its equity
securities or securities convertible into or exchangeable or
exercisable for any of such securities during the seven days prior
to and the 90 days after any firm commitment underwritten
registration pursuant to Paragraph 1 or 2 has become effective,
except as part of such underwritten registration and except
pursuant to registrations on Form S-4 or S-8 or any successor or
similar forms thereto, and
(B) to use its best efforts to cause each holder of its equity
securities or any securities convertible into or exchangeable or
exercisable for any of such securities, in each case purchased
from the Company at any time after the date hereof (other than in
a public offering) to agree not to effect any such public sale or
distribution of such securities, during such period or, in either
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-9
case, if the managing underwriter advises the Company in writing
that in its opinion, no such public sale or distribution should be
effected for a specified period longer than 90 days after such
underwritten registration in order to complete the sale and
distribution of securities included in such registration, during a
reasonably longer period after such underwritten registration,
except as part of such underwritten registration.
5. PREPARATION; REASONABLE INVESTIGATION. In connection with the
preparation and filing of each registration statement under the Act, the
Company will give the holders of Registrable Securities registered under such
registration statement, their underwriters, if any, and their respective
counsel and accountants, the opportunity to participate in the preparation of
such registration statement, each prospectus included therein or filed with
the Commission, and each amendment thereof or supplement thereto, and will
give each of them such access to its books and records and such opportunities
to discuss the business, finances and accounts of the Company and its
subsidiaries with its officers, directors and the independent public
accountants who have certified its financial statements as shall be
necessary, in the opinion of such holders' and such underwriters' respective
counsel, to conduct a reasonable investigation within the meaning of the Act.
6. CERTAIN RIGHTS OF HOLDERS. The Company will not file any
registration statement under the Act which refers to any holder of
Registrable Securities by name or otherwise as the holder of any securities
of the Company, unless it shall first have given such holder the right to
require:
(a) the insertion therein of language, in form and substance
satisfactory to such holder, to the effect that, in the opinion of such
holder, the holding by such holder of such securities does not make such
holder a "controlling person" of the Company within the meaning of the Act
and is not to be construed as a recommendation by such holder of the
investment quality of the Company's securities covered thereby and that such
holding does not imply that such holder will assist in meeting any future
financial requirements of the Company, or
(b) in the event that such reference to such holder by name or
otherwise is not required by the Act or any rules and regulations
promulgated thereunder, the deletion of the reference to such holder.
7. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. In the event of any registration
of any securities of the Company under the Act, the Company will, and hereby
does, indemnify and hold harmless the seller of any Registrable Securities
covered by any registration statement filed pursuant to Paragraph 1 or 2,
its directors, officers, partners, employees, agents and investment
advisors, each other Person who participates as an underwriter in the
offering or sale of such securities and each other Person, if any, who
controls such seller or any such underwriter within the
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-10
meaning of either Section 15 of the Act or Section 20 of the Exchange Act,
from and against any losses, claims, damages or liabilities, joint or
several (or actions or proceedings, whether commenced or threatened, in
respect thereof) (collectively, "Claims"), to which such seller or any such
director or officer or employee or agent or investment advisor or
underwriter or controlling person may become subject under either Section 15
of the Act or Section 20 of the Exchange Act or otherwise, insofar as such
Claims arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in any registration statement under
which such securities were registered under the Act, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto (if used during the period the Company is
required to keep the registration statement current) (collectively,
"Registration Documents"), or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances in which
made, or any violation by the Company of the Act or any state securities
law, or any rule or regulation promulgated under the Act or any state
securities law, or any other law applicable to the Company relating to any
such registration or qualification, and the Company will reimburse such
seller and each such director, officer, employee, agent, investment advisor,
underwriter and controlling person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending
any such Claim; PROVIDED that the Company shall not be liable in any such
case to the extent that any such Claim or expense arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any such Registration Document in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by such seller stating that it is for use in the
preparation thereof; PROVIDED FURTHER that the Company shall not be liable
to any Person who participates as an underwriter in the offering or sale of
Registrable Securities or any other Person, if any, who controls such
underwriter within the meaning of either Section 15 of the Act or Section 20
of the Exchange Act in any such case to the extent that any such Claim, or
expense arises out of such Person's failure to send or give a copy of the
final prospectus to the Person claiming an untrue statement or alleged
untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was corrected in such final prospectus. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such seller or any such director,
officer, employee, agent, investment advisor, partner, underwriter or
controlling person and shall survive the transfer of such securities by
such seller.
(b) INDEMNIFICATION BY THE SELLERS. The Company may require, as a
condition to including any Registrable Securities in any registration
statement filed pursuant to Paragraph 1 or 2, that the Company shall have
received an undertaking satisfactory to it from the prospective seller of
such securities, to indemnify and hold harmless (in the same manner and to
the same extent as set forth in subdivision (a) of this Paragraph 7) the
Company, each director of the Company, each officer of the
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-11
Company and each other person, if any, who controls the Company within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act,
with respect to any statement or alleged statement or omission or alleged
omission from such Registration Document, if such statement or alleged
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company through an
instrument duly executed by such seller specifically stating that it is for
use in the preparation of such Registration Document. Notwithstanding the
foregoing, in no event shall any selling stockholder or any director,
officer, employee, agent, investment advisor or controlling person thereof
be liable to indemnify the Company pursuant to this subdivision (b) of this
Paragraph 7 hereof in an amount in excess of the amount of the net proceeds
of the Registrable Securities sold by him, her or it in any such offering.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Company of any such director,
officer or controlling person and shall survive the transfer of such
securities by such seller.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
Claim referred to in the preceding subdivisions of this Paragraph 7, such
indemnified party will, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement
of such action; PROVIDED that the failure of any indemnified party to give
notice as provided herein shall not relieve the indemnifying party of its
obligations under the preceding subdivisions of this Paragraph 7, except to
the extent that the indemnifying party is actually prejudiced by such
failure to give notice. In case any such action is brought against an
indemnified party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may
exist in respect of such claim, the indemnifying party shall be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party for any legal or other expenses subsequently incurred
by the latter in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall consent to entry of any
judgment or enter into any settlement of any pending or threatened
proceeding in respect of which an indemnified party is or could have been a
party and indemnity could have been sought under subdivision (a) of this
Paragraph 7 without the consent of the indemnified party which does not
include as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release from all liability in
respect to such claim or litigation.
(d) OTHER INDEMNIFICATION. Indemnification similar to that specified
in the preceding subdivisions of this Paragraph 7 (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or other qualification
of securities under any Federal or
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-12
state law or regulation of any governmental authority, other than the Act.
If the indemnification provided for in subdivision (a), (b) or (c) of this
Paragraph 7 is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to therein,
then each indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
(i) in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party or parties on the one hand and the
indemnified party or parties on the other hand from the offering of the
securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the indemnified party or parties on the other hand in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations; PROVIDED, HOWEVER, that in no event shall any contribution
by the selling stockholder or any director, officer, employee, agent,
investment advisor or controlling person thereof pursuant to this
subdivision (d) of this Paragraph 7 exceed the amount of the net proceeds
of the Registrable Securities sold by him, her or it in any such offering.
(e) INDEMNIFICATION PAYMENTS. The indemnification required by this
Paragraph 7 shall be made by periodic payments of the amount thereof during
the course of the investigation or defense, as and when bills are received
or expense, loss, damage or liability is incurred.
8. ADJUSTMENT AFFECTING REGISTRABLE SECURITIES. The Company will not
effect or permit to occur any combination or subdivision of shares which
would adversely affect the ability of the holders of Registrable Securities
to effect the registration of such securities in the manner contemplated by
these registration rights provisions.
9. COVENANTS RELATING TO RULE 144. At all times after the effective
date of the registration statement under the Act of the initial underwritten
public offering of Common Stock, and until such time as all of the
Registrable Securities are deregistered, the Company will file reports in
compliance with the Exchange Act and will, at its expense, forthwith upon the
request of any holder of Restricted Securities, deliver to such holder a
certificate, signed by the Company's principal financial officer, stating:
(a) the Company's name, address and telephone number (including area
code),
(b) the Company's Internal Revenue Service identification number,
(c) the Company's Commission file number,
(d) the number of shares of Common Stock of the Company outstanding as
shown by the most recent report or statement published by the Company, and
EXHIBIT D TO STOCKHOLDERS AGREEMENT
D-13
(e) whether the Company has filed the reports required to be filed
under the Exchange Act for a period of at least 90 days prior to the date of
such certificate and in addition has filed the most recent annual report
required to be filed thereunder.
EXHIBIT D TO STOCKHOLDERS AGREEMENT
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